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Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program

The U.S. Senate has passed a bill sponsored by Ohio senators Sherrod Brown and Rob Portman that intends to improve the federal response to water pollution by amending the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998. Senate Bill 1057 will now move on to the House of Representatives for debate.

What are harmful algal blooms and hypoxia?

The EPA defines harmful algal blooms as “overgrowths of algae in water,” some of which “produce dangerous toxins in fresh or marine water.” The toxins can be dangerous for humans and animals. One major contributor to algal blooms is an excess of nitrogen and phosphorus in the water. Hypoxiacan also be caused by too much nitrogen and phosphorus in the water. The EPA defines hypoxia as “low oxygen” in water. Hypoxia sometimes goes hand-in-hand with algal blooms, because as algae dies, it uses oxygen, which in turn removes oxygen from the water. Algal blooms and hypoxia have been a problem in Lake Erie and other parts of the country.

Background of the law

The Harmful Algal Bloom and Hypoxia Research and Control Act was passed in 1998 in response to harmful algal blooms and hypoxia along the coast of the United States. When passing the law, Congress cited scientists who said both problems were caused by “excessive nutrients.” Furthermore, Congress found that harmful algal blooms had caused animal deaths, health and safety threats, and “an estimated $1,000,000,000 in economic losses” in the previous decade.

The law established an interagency Task Force on Harmful Algal Blooms and Hypoxia (Task Force), which was charged with submitting an assessment to Congress on the “ecological and economic consequences” of both harmful algal blooms and hypoxia. The assessments were to include “alternatives for reducing, mitigating, and controlling” harmful algal blooms and hypoxia. A number of other reports and assessments were also required, which were to all culminate in a plan to combat and reduce the impacts of harmful algal blooms. Additionally, the Act singled out the areas of the Northern Gulf of Mexico and the Great Lakes. For these two areas, the Act required additional progress reports and mitigation plans.

The Act has undergone a few amendments throughout the years. The amendments have expanded and/or renewed the duties of the Task Force and other state and federal actors. Most notably, amendments in 2014 created the national harmful algal bloom and hypoxia program (Program) and a comprehensive research plan and action strategy. Under the Program, the National Oceanic and Atmospheric Administration (NOAA) was charged with administering funding to programs combatting algal blooms and hypoxia, working with state, local, tribal, and international governments to research and address algal blooms and hypoxia, and supervising the creation and review of the action strategy, among other duties. The action strategy identified the “specific activities” that the Program should carry out, which activities each agency in the Task Force would be responsible for, and the parts of the country where even more specific research and activities addressing algal blooms and hypoxia would be necessary.

What changes are proposed?

SB 1057 would make a number of changes and additions to the current law. Overall, the goal of the bill seems to be to strengthen the federal government’s ability to research and respond to water pollution in the form of algal blooms and hypoxia. The most important amendments in the bill would:

Add the Army Corps of Engineers to the list of agencies on the Task Force.

Combine the sections on freshwater and coastal algal blooms, and require that scientific assessments be submitted to Congress every five years for both types of water.

Establish a website that would provide information about the harmful algal bloom and hypoxia program (Program) activities to “local and regional stakeholders.”

Require the Task Force to work with extension programs to promote the Program and “improve public understanding” about harmful algal blooms and hypoxia.

Require the use of “cost effective methods” when carrying out the law.

Require the development of “contingency plans for the long-term monitoring of hypoxia.”

Fund the Program and the comprehensive research plan and action strategy from 2019 through 2023.

Most importantly, SB 1057 would add a completely new section to the law that would allow federal officials to “determine whether a hypoxia or harmful algal bloom event is an event of national significance.” Under the new language, the federal official can independently determine that such an event is occurring, or the Governor of an affected state can request that a determination to be made.

When making the determination, the federal official would have to take a number of factors into consideration including:

Toxicity of the harmful algal bloom;

Severity of the hypoxia;

Potential to spread;

Economic impact;

Relative size in relation to the past five occurrences of harmful algal blooms or hypoxia events that occur on a recurrent or annual basis; and

Geographic scope, including the potential to affect several municipalities, to affect more than one State, or to cross an international boundary.

Finally, in the case an event of national significance is found, the the federal official would have the power to give money to the affected state or locality to mitigate the damages. However, SB 1057 states that the federal share of money awarded cannot be more than 50% of the cost of any activity. The federal official would have the power to accept donations of “funds, services, facilities, materials, or equipment” to supplement the federal money.

The bill now goes to the House of Representatives for consideration. Text and information on SB 1057 is available here. To read the current law, click here. For further information on water pollution, check out the EPA’s pages on harmful algal blooms and hypoxia.

The purpose of OLEC is to advise on the development, implementation, and coordination of Lake Erie programs and policies and to oversee the management of the Lake Erie Protection Fund. For Ohio agriculture, the most important of S.B. 2’s revisions to OLEC is the expansion of OLEC’s purpose to include “issues related to nutrient-related water quality.” This change reveals a new focus on nutrient impacts on Lake Erie’s water quality and a resulting charge for OLEC to implement the Ohio EPA’s current plan for reducing phosphorous levels in the Lake by 40% by 2025.

Furthermore, S.B. 2 broadens and strengthens OLEC’s role in coordinating and funding policies, programs and priorities related to Lake Erie. Coordination with the federal government is encouraged, as is consideration of the efforts of Ohio and other Great Lakes states and countries, as well as any agreements between those states and countries and Ohio. OLEC must also publish a Lake Erie Protection and Restoration Strategy that describes the commission’s goals and its planned uses for the Lake Erie Protection Fund. Demonstration projects and cooperative research are now acceptable uses of the fund, in addition to the previously established use of data gathering.

S.B. 2 enhances coordination between OLEC and the Great Lakes Protection Fund (GLPF) board by bringing two members of the GLPF’s board onto OLEC’s board, which currently consists of the directors of Ohio’s EPA, Department of Natural Resources, Department of Health, Department of Agriculture, Department of Transportation and Department of Development, along with five additional members appointed by the governor and approved by the Senate. S.B. 2 requires the Governor to select the two GLPF board members who will serve on the OLEC board.

Changes in S.B. 2 also call for OLEC to develop public education and outreach programs about their work and issues facing Lake Erie and to expand fundraising efforts to support their programs—namely through the promotion of the sale of Lake Erie license plates. A number of provisions regard the disposal of construction and demolition debris and dredging in Lake Erie.

The revisions in S.B. 2 are likely to better equip OLEC to carry out strategies for improving Lake Erie’s water quality. Most notably, the new law will shift some of OLEC’s focus to combating water quality problems associated with nutrient pollution, a change that will surely affect Ohio agriculture.

S.B. 2 is available here in its entirety. Refer to the first four pages of the bill for the revisions to OLEC. More information about OLEC is here.

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The National Wildlife Federation (NWF) and five other environmental and outdoor groups (Plaintiffs) sued the United States Environmental Protection Agency (EPA) last week in the U.S. District Court for the District of Columbia. The Plaintiffs filed the lawsuit due to EPA’s failure to approve or disapprove the list of impaired waters submitted by the Ohio Environmental Protection Agency (OEPA) within the time limit required by law. The Plaintiffs are particularly concerned that the EPA’s lack of a decision on the impaired waters list may affect pollution in Lake Erie’s waters.

A background on impaired waters designation

In 1972, Congress made amendments to the Federal Water Pollution Control Act of 1948. The result was what we know today as the Clean Water Act (CWA). The very first section of the CWA states: “[t]he objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged. Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards. The specific polluters to be examined are: 1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974. For reference, point sources are defined as “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Point sources are not “agricultural stormwater discharges and return flows from irrigated agriculture.”

Those waters that states identify as not having stringent enough effluent limitations for point sources and public treatment works are called “impaired waters.” Along with the identification of impaired waters, states must also put forth total maximum daily loads (TMDLs), or the amounts of each kind of pollutant allowed. The CWA in its entirety is available here.

A regulation promulgated by the EPA under CWA mandates that states submit the list of waters they determine to be impaired every two years. The list must include a description of the “pollutants causing impairment” and their total maximum daily loads (TMDLs). The same regulation requires the EPA “to approve or disapprove such listing and loadings not later than 30 days after the date of submission.”

On October 20, 2016, OEPA submitted its list of impaired waters in the Ohio Integrated Water Quality Monitoring and Assessment Report, available here . The list of impaired waters included parts of Lake Erie, namely the Lake Erie Central Basin Shoreline and the Lake Erie Islands Shoreline. Significantly, OEPA did not include the open waters of the western basin of Lake Erie on its list. The EPA has not responded to Ohio’s list by approving or disproving its listings.

Michigan submitted its impaired waters list in November 2016 and the EPA approved the report on February 3, 2017. Michigan listed the entirety of the Lake Erie waters in the state’s jurisdiction as impaired. This would include Michigan’s share of open waters in the western basin of Lake Erie. Michigan’s report is here.

The current lawsuit

As discussed above, six environmental and outdoor groups based in Ohio, Michigan and Illinois sued the EPA and its national and Region 5 administrators for the lack of a decision on OEPA’s list of impaired waters. The EPA was required to make the decision within 30 days of October 20, 2016. The Plaintiffs gave the EPA prior warning of their intention to sue in a notice sent on December 19, 2016. Since then, the EPA still has not come to a decision about Ohio’s list of impaired waters.

The crux of this lawsuit is the difference between Ohio and Michigan’s listings of waters in the same general area—the Western Basin of Lake Erie. Michigan listed the basin as impaired and Ohio did not. The Plaintiffs argue that the “inaction” on the part of the EPA “allows pollution… to continue unabated” throughout Lake Erie. Implicit in the Plaintiffs’ argument is that it seems unlikely that the EPA would allow one state to designate their Lake Erie water as impaired while the other state does not since water does not necessarily stay within state boundaries. The Plaintiffs appear to anticipate that EPA, when forced to make a decision, will disapprove of Ohio’s listing. Consequently, TMDLs could be established for greater areas of the Lake and water quality would likely be improved for the use and enjoyment of the Plaintiffs and their members.

What would a disapproval of OEPA’s list mean for Ohio?

If the court compels EPA to make a decision and EPA decides that OEPA was wrong to exclude the open waters of the Western Basin of Lake Erie as impaired, EPA regulations give the EPA the authority to take action within thirty days. EPA actions would include identifying the waters as impaired and instituting the allowable TMDLs necessary to implement applicable water quality standards. After a public comment period and potential revisions to EPA’s actions, it would be up to the state of Ohio to meet the EPA’s TMDLs for the impaired waters.

What would a listing as impaired mean for Ohio residents—individuals, farms, and companies? It would probably mean increased regulations, likely in the form of reduced allowable loads of pollutants from the point sources and public treatment works discussed above. Time, effort, and money might be necessary to comply with such changes. Regulations and TMDLs might affect more Ohioans than before, since OEPA designated parts of Lake Erie as impaired but not others.

On the flip side, increased regulation could mean better water quality in Lake Erie for drinking, sport, and other uses. For now, Ohioans and others who use Lake Erie’s waters or are located in areas that drain to the Lake will have to wait for the federal court to act on the lawsuit.

The full complaint in National Wildlife Federation v EPA is available here.

The 131st session of the Ohio General Assembly is underway with a few changes to the structure and leadership of the committees that address agriculture. In the House of Representatives, the previous Agriculture and Natural Resources Committee has been renamed as the Agriculture and Rural Development Committee. Natural resource issues, previously handled with agriculture under the old committee structure, will now go to a newly formed Energy and Natural Resources Committee. The committee modifications echo similar changes made last session in the Senate.

The House Agriculture and Rural Development committee will kick off its work with a prominent issue: water quality. Speaker Cliff Rosenberger has stated that water quality will be a priority issue that the House "needs to address and address quickly." Late last session, the House attemped to mitigate algal issues in Ohio lakes by passing legislation that would have affected applications of livestock manure and chemical fertilizers (HB 490). The legislation failed to pass the Ohio Senate and expired on December 31, 2014 with the end of the legislative session. This week, the House Agriculture and Rural Development Committee will revisit those issues when it meets off-site for a hearing at Cooper Farms in Van Wert to discuss water quality, nutrient management and agriculture. Expert witnesses in agriculture and watershed management will present testimony and address questions from the committee.

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